Oregon State Bar Bulletin  DECEMBER 2012

Parting Thoughts

Punishing Bad ThoughtsBy Blair Schlecter

It’s well established that one cannot be punished for thoughts alone. For example, in order to be guilty of a crime, one must have a guilty mind ( mens rea ) and commit a guilty act ( actus rea ). Although not widely discussed, this same principle also seems to apply to civil cases. The 9th Circuit Court of Appeals’ decision in Skoog v. County of Clackamas, 469 F.3d 1221 (9th Cir. 2006), challenges this principle of the law, holding that a police officer may be liable for engaging in an otherwise legal act solely because the officer has an improper motive.

The First Amendment provides that “Congress shall make no law ... abridging the freedom of speech.” In support of this right, a citizen can pursue claims against government officials who retaliate against him or her because of protected speech.

Under the Fourth Amendment, an officer may not arrest a person or engage in a search unless such search or arrest is supported by probable cause. The existence of probable cause to search or arrest is an objective inquiry based on the facts available to the officer at the time of the event. Therefore, in contrast to the First Amendment, an officer’s subjective intent is irrelevant under the Fourth Amendment.

The issue here is whether a government official is still liable under the First Amendment for arresting or searching a person simply because he had an improper motive in doing so.

In Skoog , several police officers for Clackamas County took part in a search of Daniel Skoog’s office and seized a digital camera he had used to film Officer Herbert Royster during an investigation. Skoog later filed a lawsuit claiming that the officers illegally searched and seized his recording equipment, in violation of the Fourth Amendment. He also claimed that Officer Royster obtained and executed the search warrant to retaliate against him, in violation of his First Amendment rights, for filing a previous lawsuit against Clackamas County. Royster then filed a motion for summary judgment.

On appeal, the 9th Circuit found that Skoog failed to establish that his Fourth Amendment rights were violated, as there was probable cause for the search of his office. As to the claim that Royster conducted the search in retaliation for the prior lawsuit, the 9th Circuit concluded that even though the search and seizure of Skoog’s digital camera was lawful, Skoog could still proceed with a First Amendment retaliation claim. The court did find that Royster was entitled to qualified immunity, as this First Amendment right was not yet clearly established at the time of this incident.

Not many cases discuss in depth the issue raised in Skoog . One of the few cases that does is Baldauf v. Davidson , 2007 U.S. Dist. Lexis 53924 (S.D. Ind. 2007), a district court case from Indiana. In Baldauf , the court considered whether a citizen’s First Amendment retaliation claim could go forward where there was probable cause for the citizen’s arrest. The court concluded that a citizen must establish a lack of probable cause under the Fourth Amendment in order to pursue a First Amendment retaliation claim. It stated, “to the extent that a plaintiff’s injuries derive from the seizure of his or her person, then the retaliatory arrest claim differs little from a traditional Fourth Amendment claim, in which the Supreme Court has repeatedly held that an officer’s subjective motivations are irrelevant.” Quoting the Supreme Court, the court concluded, “ ‘It may be dishonorable to act with an unconstitutional motive and perhaps in some instances be unlawful, but action colored by some degree of bad motive does not amount to a constitutional tort if that action would have been taken anyway.’ ”

Permitting a First Amendment retaliation claim even where there is probable cause for a search and seizure does give more force to First Amendment protections. It deters government actors from retaliating against individuals based on protected speech.

On the other hand, the Skoog decision has the potential to result in a significant amount of “thought punishment.” The idea that a person can be held liable for improper motives conflicts with the idea that a person should not be punished for having “bad thoughts.” In First Amendment retaliation cases where an officer has probable cause to act, a court will also be forced to undertake the difficult and speculative task of determining an officer’s mental state.

This ruling could overturn our understanding of when someone is guilty of a crime or liable for damages to another person. Therefore, there are good grounds for the 9th Circuit to reverse its decision in Skoog .